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HomeMy WebLinkAbout2012/10/25-Minutes-Ethics Review CommisionCITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Present: Carter Burdette Dr. Evan Lenow Ralph Emerson Francisco Hernandez Chris Garcia (arrived at 2:18 p.m.) Staff Present: Sarah Fullenwider, City Attorney Peter Vaky, Deputy City Attorney Mary J. Kayser, City Secretary I. CALL TO ORDER With a quorum of the Ethics Review Committee Members present, Chairman Lenow called the meeting to order at 2:12 p.m., on Thursday, October 25, 2012, in Pre - Council Chamber, 3rd Floor, Fort Worth City Hall, 1000 Throckmorton Street, Fort Worth, Texas 76102. II. APPROVAL OF MINUTES OF THE SEPTEMBER 27, 2012 MEETING Motion: Francisco Hernandez made a motion, seconded by Ralph Emerson that the minutes of the meeting of September 27, 2012, be approved. The motion carried unanimously. III. REQUEST FOR ADVISORY OPINION BY CITY COUNCIL MEMBER KELLY ALLEN GRAY REGARDING PARTICIPATION IN DISCUSSIONS AND VOTES ON MATTERS CONCERNING THE CITY'S PENSION PLAN, DISCUSSION AND ACTION BY THE COMMITTEE Chris Garcia arrived at 2:18 p.m. Chair Lenow asked Council Member Allen Gray to tell the committee what her request was. Council Member Allen Gray stated that she was requesting an advisory opinion from the committee related to her being allowed to participate in the discussion, in open and closed session, related to the pension issue. She stated that she was recusing herself from the votes but wanted to participate in the discussions so that she would be able to provide information to her constituents. CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Chair Lenow asked Council Member Allen Gray if she had sought the City Attorney's input on the issue. Council Member Allen Gray stated that on the vote specifically she had and that she had recused herself from the discussions at the City Attorney's request. She stated that the Ethics Code was vague related to discussion. She stated that she and the City Attorney had a conversation about it and it was suggested that she address the issue before the Ethics Review Committee. Chair Lenow asked if Council Member Allen Gray was willing to allow the City Attorney to tell the committee what she had advised Council Member Allen Gray. Council Member Allen Gray said yes. Chair Lenow asked City Attorney Sarah Fullenwider to tell the committee what she had advised Council Member Allen Gray. Ms. Fullenwider stated that she had advised Council Member Allen Gray that under Section 2- 238(a)(5) of the Ethics Code there is a provision that states that a Council Member is not allowed to use their public position for private gain. She advised Council Member Allen Gray that she could be subject to a potential ethics complaint if someone felt that she was using her position by voting on and participating in discussions related to pension and benefits because her husband is a police officer and he would benefit or be impacted by any decision the Council made and she would be impacted as well being the spouse of a city employee and beneficiary under the pension plan. Ms. Fullenwider advised her that to avoid a potential ethics complaint to recuse from discussion and voting and Council Member Allen Gray has done so. Council Member Allen Gray is seeking an advisory opinion from the committee as to whether she should be allowed to participate in the discussions. Carter Burdette clarified with Council Member Allen Gray that she will continue to follow the City Attorney's advice and recuse from voting but she is seeking the opinion of the Committee regarding participating in discussions related to pension issues in open sessions and executive sessions. Chair Lenow clarified for the record that no complaint has been filed, that Council Member Allen Gray is seeking this opinion. Rev. Emerson stated that it might be uncomfortable for Council Member Allen Gray to participate in the discussion but that she should have the opportunity to ask questions for clarity for her to but in Executive Session she could participate because those matters stay within the Executive Session. Mr. Hernandez stated that from his experience on the Texas Ethics Commission a conflict for anything is a conflict for all including all discussion. 2 CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Ms. Fullenwider stated that one of the basis for her opinion was the Attorney General's opinion that if you have a conflict that includes discussion and voting. Mr. Burdette state that it seemed as if they had two questions before them: Does this Committee have the authority to issue advisory opinions? If the Committee has the legal authority do we exercise it and issue an opinion? Deputy City Attorney Peter Vaky clarified that under the current Ethics Code the Committee was eligible to issue and advisory opinion. Chair Lenow opened the floor for discussion on whether the Committee should issue an advisory opinion. The following points were raised during the discussion: No absolute defense with an advisory opinion Advisory opinion would reflect the consensus of the committee as it stands now. A future committee might interpret things differently Concerns about the procedure for issuing the opinion Concern that the requests does not arise out of a particular incident or set of facts Concern about the ramifications of issuing an advisory opinion and later being faced with a complaint related to an action taken in reliance on the opinion. The committee felt that they would not be able to respond if a complaint was filed. City Attorney Fullenwider stated that their research indicated that there has not been an advisory opinion issued or requested from the Ethics Committee. Reverend Emerson asked Council Member Allen Gray if she requested a City Attorney opinion and based on that opinion recused herself. Council Member Allen Gray stated that Ms. Fullenwider came to her with the opinion. Council Member Allen Gray has consulted with other attorneys who have a different opinion. Her attorney suggested that she bring the issue before the Ethics Committee for a written opinion. Ms. Fullenwider stated that if she sees a potential conflict on any agenda item for any council member she will notify them. She notified Council Member Allen Gray that to avoid a potential ethics complaint that she should recuse from discussing and voting on the pension issue. She stated that Council Member Allen Gray has followed that advice. 3 CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Council Member Allen Gray stated that Ms. Fullenwider provided her with an opinion and Council Member Allen Gray's attorney has provided a different opinion. Council Member Allen Gray stated that she chose to recuse from voting. Her bigger concern is being involved in the discussions so that she and answer questions from her constituents. At this time Chair Lenow indicated that he was hearing a consensus of the committee to not issue an opinion at this time. The committee expressed again their concern about the ramifications of issuing advisory opinions. Motion was made by Carter Burdette with a second by Chris Garcia that the Ethics Review Committee, under the circumstances presented today decline to issue an advisory opinion to Council Member Allen Gray. Rev. Emerson asked if the committee could meet in executive session. The committee was advised that they could meet in Executive Session at a future meeting and that outside counsel would have to be secured. Carter Burdette withdrew his motion. Motion was made by Carter Burdette with a second by Ralph Emerson to decline to issue an advisory opinion until the Ethics Review Committee can meet in Executive Session with outside counsel at a future meeting. Motion passed 5 -0. The committee had a brief discussion about advisory opinions. Chair Lenow stated that all the questions related to advisory opinions would be appropriate to discuss with outside counsel at the future Executive Session. IV. DISCUSSION AND REVIEW OF PROPOSED REVISIONS TO THE CITY'S ETHICS CODE Deputy City Attorney Peter Vaky stated that in the proposed changes to the Ethics Code the issuance of advisory opinions has been removed from the Commission's scope. Mr. Vaky proceeded to review the proposed changes to the ordinance: That the policy statement is not part of the code it just reflects the intentions of the code. Added a definition of domestic partner and the code will now treat them the same as spouses which is consistent with the cities administrative regulations. 11 CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 The definition of substantial interest was amended to be consistent with state law. The committee asked if there was a way to add a stipulation that the substantial interest definition would always align with state law. Defined task forces as advisory only. Reliance on a written City Attorney opinion is a defense to an allegation under the code. The written City Attorney opinion can also be email or recorded City Council meeting as long as there is some form of a record. Clarifying that at least one member on the Commission shall be an attorney does not limit the commission to only having one attorney Clarify that the City Council may solicit suggestions from outside groups about the makeup of the committee but is not required to do so and eliminating the requirements for quarterly meetings Clarified that the City Attorney is to provide the Commission with general advice but that once a complaint is filed outside counsel would represent the Commission and the person accused. The City Attorney does not play a role in determining the sufficiency of a complaint. The City Attorney can testify if the complainant waives the attorney client privilege. Clarified that any resident of the city or nonresident owner of taxable real property within the corporate limits of the city can file a complaint. Clarified the components of a sufficient complaint so that the City Secretary can check them off and if they are met it is sufficient and if any are missing the complaint is returned to the person who filed it. This will eliminate the need for a preliminary hearing. Clarified the order of business for the commission once a complaint is accepted. Clarified when the commission can dismiss a complaint (substantially the same facts previously determined not to be a violation; conduct occurred more than 2 years prior to the date of the complaint) Clarified determination to what extent the conduct of the person complained against relied on the written or verbal opinion of the City Attorney. Committee suggested that it be clarified that the original filing date is the date subject to the two year statute of limitations. 5 CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Clarified the definitions of the sanctions which apply to anyone. Additionally clarified that there are other recommendations the commission can make beyond sanctions. Clarified the basis of an appeal: Determination that the complaint did not allege conduct that would be a violation of the code Determination that the conduct was undertaken in reliance on a written City Attorney opinion Determination after an evidentiary hearing as to whether a violation occurred. Clarified that a hearing officer will be appointed to hear all appeals and that appeals are based only on the record. Clarified the actions in an appeal If the commission finds no violation and the hearing officer finds no violation the hearing officer's decision is final. If the commission finds no violation but the hearing officer finds a violation and imposes a sanctions it will go to the City Council for action. If the commission finds a violation and imposes a sanction and the hearing officer denies the appeal and the violation and sanction are upheld it will go to City council for action If the commission finds a violation and imposes a sanction and the hearing officer upholds the appeal (no violation and no sanction) it will go to City council for action Chair Lenow asked for consistency in the use of either hearing officer or hearings officer. The draft will be presented to Council at the November 12, 2012 Pre Council meeting. V. CITIZEN'S COMMENTS Mr. Jim Ashford, 6209 River View Circle, addressed the committee on the following: The Ethics Code is to protect the citizens. Changes are to make the Ethics Code less stringent. Disagrees with City Attorney opinions as an absolute defense. Use of the term Advisory Boards. Task Forces would not be subject the Open Meetings Act. Number of lawyers on the Ethics Review Commission. no CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 Number of members necessary to act. Purpose of Commission. VI. RECOMMENDATION TO THE CITY COUNCIL ON PROPOSED REVISIONS TO THE CITY'S ETHICS CODE Peter Vaky reviewed the revisions from the discussion at this meeting: Clarifying that the 2 year statute of limitations is dated from the original filing date. Clarifying that the attorney client privilege has to be waived before the City Attorney can testify. Adding to the definition of substantial interest a reference to Chapter 171 of the Local Government Code Any non material changes such as typos will be corrected. Motion was made by Ralph Emerson and second by Carter Burdette to send the revised City Ethics Code with the inclusion of the revisions from today's meeting to the City Council for their approval. Motion passed 5 -0. VII. FUTURE AGENDA ITEMS The committee discussed the selection of external counsel. Suggestions were as follows: Robert Aldrich Mark Daniel If neither of these two can serve the City Attorney will provide names to the Committee and proceed from that point. VIII. DATE OF NEXT MEETING November 12, 2012 the committee will be in attendance at the Pre Council meeting. Tentative date of November 20, 2012. 7 CITY OF FORT WORTH, TEXAS ETHICS REVIEW COMMITTEE MEETING OCTOBER 25, 2012 IX. ADJOURNMENT There being no further business, Chair Lenow adjourned the meeting at 4:12p.m. These minutes were approved on the day of Approved: Chairman ATTEST: -) j Maryser, C"' y Secretary